Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
Los Angeles, Motion to Reclassify H & S 11350 Misdemeanor
In August 2012, our client, then age 23, was arrested by the CHP, Central Los Angeles station, on suspicion of violating Health & Safety Code §11350(a) as a felony, as well as Vehicle Code 23152(a), a misdemeanor.
The client had ingested heroin laced with fentanyl and passed out while driving his car. He then rearended another car, carrying four people, on the freeway. Luckily, no one was injured, although there was some property damage. Prior to the conviction in this case, our client was convicted of DUI in Nevada in 2011, but this DUI fortunately was not charged as a second-time DUI.
With representation by a private attorney, about six months later, our client entered a plea of nolo contendere to a felony violation of Health & Safety Code § 11350(a), also known as possession of a controlled substance, as well as Vehicle Code 23152(a)
In November, 2014, Proposition 47 became effective at Penal Code § 1170.18. As the reader may know, it allowed a judge to reduce certain low level felony theft offenses and minor drug felonies to misdemeanors unless the person was a registered sex offender, the person a prior conviction for a “Super Strike” as defined by Penal Code § 667(e)(2)(C)(iv), or doing so would impose a danger upon the public.
In 2015, the Los Angeles County Public Defender’s Office contacted our client by letter to notify him that his conviction for violation of Health & Safety Code § 11350(a), as a felony, was eligible for reduction to a misdemeanor under Prop 47. The letter asked our client if he was interested in such a reduction and if so, to contact them to let them know this. The client then reached out to the public defenders’ office and said he was interested in such a reduction.
The public defenders’ office then filed a petition for reduction of the 11350(a) charge to a misdemeanor and judge assigned to our client’s case graciously reduced our client’s felony conviction for violating Health and Safety Code § 11350(a) to a misdemeanor pursuant Penal Code § 1170.18(g) (“Prop 47”).
The client’s probation then ended naturally. After this case, the client suffered convictions for petty theft in 2015, 2016 and 2017 (he had two such convictions in 2017). He also has two DUI convictions from 2022, both for arrests from 2019.
In late 2023, he called our office and asked about restoring his gun rights. He explained that he had been convicted of a felony in 2012, but that it had been reduced to a misdemeanor under Prop 47. He then explained that he had attempted to buy a firearm, as he had recently gotten married and wanted to protect his family, but was denied and was confused.
Our office then filed the motion to reclassify our client’s drug possession offense nun pro tunc under 17(b)(3), rather than under Prop 47. The motion explained that in California, "[a]ll courts have inherent authority to issue orders nunc pro tunc . . . ." Martin v. Martin (1970) 2 Cal.3d 752, 760. The primary purpose of a judgment nunc pro tunc is to correct a judgment rendered, and not to modify the terms of the judgment. Hamilton v. Laine (1997) 57 Cal.App.2d 885, 891.
The judge assigned to the case recognized the problem with this request (as a judge with a strict view of nunc pro tunc), but commented off the record that he wanted to grant the motion anyways and did.
The client had ingested heroin laced with fentanyl and passed out while driving his car. He then rearended another car, carrying four people, on the freeway. Luckily, no one was injured, although there was some property damage. Prior to the conviction in this case, our client was convicted of DUI in Nevada in 2011, but this DUI fortunately was not charged as a second-time DUI.
With representation by a private attorney, about six months later, our client entered a plea of nolo contendere to a felony violation of Health & Safety Code § 11350(a), also known as possession of a controlled substance, as well as Vehicle Code 23152(a)
In November, 2014, Proposition 47 became effective at Penal Code § 1170.18. As the reader may know, it allowed a judge to reduce certain low level felony theft offenses and minor drug felonies to misdemeanors unless the person was a registered sex offender, the person a prior conviction for a “Super Strike” as defined by Penal Code § 667(e)(2)(C)(iv), or doing so would impose a danger upon the public.
In 2015, the Los Angeles County Public Defender’s Office contacted our client by letter to notify him that his conviction for violation of Health & Safety Code § 11350(a), as a felony, was eligible for reduction to a misdemeanor under Prop 47. The letter asked our client if he was interested in such a reduction and if so, to contact them to let them know this. The client then reached out to the public defenders’ office and said he was interested in such a reduction.
The public defenders’ office then filed a petition for reduction of the 11350(a) charge to a misdemeanor and judge assigned to our client’s case graciously reduced our client’s felony conviction for violating Health and Safety Code § 11350(a) to a misdemeanor pursuant Penal Code § 1170.18(g) (“Prop 47”).
The client’s probation then ended naturally. After this case, the client suffered convictions for petty theft in 2015, 2016 and 2017 (he had two such convictions in 2017). He also has two DUI convictions from 2022, both for arrests from 2019.
In late 2023, he called our office and asked about restoring his gun rights. He explained that he had been convicted of a felony in 2012, but that it had been reduced to a misdemeanor under Prop 47. He then explained that he had attempted to buy a firearm, as he had recently gotten married and wanted to protect his family, but was denied and was confused.
Greg explained that a reduction of a felony to a misdemeanor does not restore one’s right to purchase, possess or own a firearm or ammunition. However, Greg explained, he could file a motion requesting that the reduction be changed to being under Penal Code § 17(b)(3) instead, which does restore one’s Second Amendment rights.
Greg explained that the motion would be made under a theory of nunc pro tunc, but cautioned the client that some judges regard nunc pro tunc motions strictly, while others view such requests liberally. Greg warned that if the judge viewed nunc pro tunc relief strictly, the motion would be denied because in 2015, 11350(a) was otherwise only a felony (not a wobbler), so 17(b)(3) relief was unavailable. If the judge viewed nun pro relief liberally, the motion would be granted. The client said he understood and wished to proceed with the motion.
Our office then filed the motion to reclassify our client’s drug possession offense nun pro tunc under 17(b)(3), rather than under Prop 47. The motion explained that in California, "[a]ll courts have inherent authority to issue orders nunc pro tunc . . . ." Martin v. Martin (1970) 2 Cal.3d 752, 760. The primary purpose of a judgment nunc pro tunc is to correct a judgment rendered, and not to modify the terms of the judgment. Hamilton v. Laine (1997) 57 Cal.App.2d 885, 891.
The judge assigned to the case recognized the problem with this request (as a judge with a strict view of nunc pro tunc), but commented off the record that he wanted to grant the motion anyways and did.
The client was very happy with this result.
